Islamic Constitutional Law

• It should be noted that this migration of the Muslim

community from Makkah to Madinah led to the
emergence of Madinah state or the first Islamic
polity.
• This is due to the fact that upon their arrival in
Madinah, the Makkan Muslims united themselves
under a formal written constitutional arrangement
with the Muslim community of Madinah and its
surrounding communities.
• Thus, a state (Islamic polity) was established
• Islamic state or polity can be generally defined as state
or polity in which organisations, individuals, societies,
and governments enforce and apply the Shari’ah
injunctions, specific and general, in their daily life.
• Muslim political scholars have diverse opinions on the
definition of Islamic state or polity:
(a) Muhammad Iqbal argues that, “the state is only Islamic
when it fulfils the fundamental principle which makes it
Islamic.”
(b) Mohammad Asad defines the Islamic state/polity as “the
implementation of all political matters within an Islamic
world view.”
(c) Hassan Turabi’s definition is a more general mixture of
contemporary and early perspectives. To him, the
Islamic state or polity “may take any form as long as it
remains as an entity subjected to the Shari‛ah.”
d) Maududi, like Turabi, generalises the idea of the Islamic
state or polity. Maududi argues that any Islamic polity has
to accept the supremacy of Islamic law over all aspects of
political and religious life.
e) Sayyid Qutb emphasised the idea of sovereignty (al-
Hakimiyyah). To him, the state is Islamic when God is left
to lead.
f) Imam Khomeini states that state is Islamic “when its
leaders are Muslim jurists among society”.
g) Abdul Rahman al-Kawakibi contends that “Islamic state is
a state which upholds the Shari’ah and guarantees
freedom to its citizens.
• The universality of Islam warrants the establishment of
state or polity because the state or polity is a necessary
instrument for the implementation of divinely-ordained
principles that are to govern all aspects of the believers
lives.
• According to Maududi, the realisation of the objectives of
the Shari’ah is simply impossible without the agency of the
state/polity and the power it commands. In his view, the
reforms which Islam wants to bring about cannot be
carried out merely by summons. Political power is essential
for the achievement of these reforms.
• According to Khomeini, in the absence of a state or polity
one can expect anarchy. This is due to the fact that a state
is seen or viewed as providing a framework for the life of
the individual believer and the community as a whole by
playing an essential role in the perpetuation of Islamic Law
and in the maintenance of social order.
• Islamic polity derives its entire constitution from the
Shari‛ah. Thus, any contradiction that exists between any
law or article in the constitution and Islam will exclude
such a state from the circle of Islam and thus not
considered an Islamic polity. Hence, Islam would define the
state’s foreign policy and objectives; question of the rulers
and authorities; the formation of political parties, and the
checks and balances that the state would establish to
maintain its integrity etc.
• The Islamic polity would not allow any concept or idea
emanating from a source other than Islam, even if it had a
similarity to Islam. However, acceptance of such a concept
or idea may be allowed provided it is in line with Shari‘ah.
• Islamic polity revolves around the Qur’an and Sunnah and
not around the Muslims. Thus, Muslims being the majority
in a given country does not establish an Islamic polity;
partial implementation of some aspects of Islam or having
the name of Allah on the state flag does not suffice or
show that the country is an Islamic polity/state; the
existence of Islamic movements in position of authority
would not constitute an Islamic polity.
1. Absolute Sovereignty only to Allah
2. The state is a vicegerent of God
3. Concept of consultation (Shura)
4. Enjoining good and forbidding evil
5. Universality and all-embracing
6. Ideological state
7. Based on Taqwa (Righteousness and God-fearing)
8. Justice and equality
9. Freedom (al-Hurriyah)
• The Islamic polity possesses absolute sovereignty.
Absolute sovereignty belongs to Allah Almighty as He is
the Creator and hence Provider and Sources of Laws.
• Authorities:
i. Surah Yusuf 12: 40: “The Command is for none but God:
He hath commanded that ye obey non but Him: that is
the right path”.
ii. Surah Al-’Araf 7: 3: “Follow the revelation sent unto you
from your Lord, and do not follow the (so-called)
guardians other than Him”.
iii. Surah Al-Maidah 5:44: “And those who do not make their
decisions in accordance with that revealed by Allah, are
(in fact) the disbelievers”.
• These verses pointed out that Sovereignty is rendered
back only unto the God (Allah), man’s position is relegated
to the position of a Vicegerent i.e. acting on behalf and in
accordance to the dictates of the Almighty
• Power/authority emanates not from the ‘consent of the
governed,’ not as a ‘prerogative’ of the ruler, but from
Allah. It is a trust of Allah in the hands of human being for
the enforcing and upholding the Divine Law of Nature in
human government. It is trust for which the trustee must
answer to his Creator and to the entire Muslim Nation. It is
not a privilege; it is a responsibility. It has no justification in
rank, wealth, race, caste, sex, or hereditary. Its justifications
reside only in the competence of the trustee to fulfil the
obligations entrusted to him, or her.
• Source of law is based on Divine revelation- All the
injunctions of Islamic Law are revelation from Allah, so the
one who is legislating for mankind is their Creator who
knows best what will be of benefit to his creation in both
this world and the next. He knows the psychological
makeup of the human being, what will be in harmony with
it, and what will clash with it. Allah says: “Does the One
who created not know, and he is the Gentle, the All-
Aware”.
• The meaning of vicegerency implies that man is designated the
responsibility of executing the orders of Allah. Hence man and it
hereby implies that leadership of the nation must act in full
consonance with the dictates of Allah and not according to his
whims and fancies. Should he act in contravention to the dictates
of Allah, he has indeed betrayed the trust and position of
Vicegerency of God on Earth. He no longer enjoys the position of
a Vicegerent of Allah on Earth.
• When an Islamic State is regarded as vicegerent of Allah and
accepts His de jure sovereignty, the scope of its activities will
naturally be restricted within the limits ordained by the Almighty
Himself.
• Sovereignty or Hakimiyah can be studied under two aspects:
political sovereignty and legal sovereignty. Thus, the right to
legislate belongs to the lawgiver, Allah. Subsequently political
leaders, intellectuals and ‘Alima are not sovereign. They have no
supreme powers over other members of the society as far as the
legal aspect of political life of the society is concerned.
• The divine will, revealed to Prophet Muhammad, is held as the
sovereign document over all.
• Shura or consultation is one of the primary guiding
principles in conducting the affairs of the state.
• Authorities:
i. Surah As Shura 42:38: “And who (conduct) their affairs by
mutual consultation…”
ii. Surah Ali Imran 3:159: “Consult them in the conduct of
affairs. And when thou art resolved, then put the trust in
Allah.”
• Consultation is exercised in the conduct of governance in
the state, in matters that pertain to the interest of the state
and society. In areas and matters that would require
‘ijtihad’ or scholarly opinion, consultation or shura is
conducted so as to ascertain the best decision that takes
into consideration the benefits, risks and disadvantages of
a certain stand.
• Its first and foremost obligation is to establish the systems
of Salat and Zakat to propagate and establish those things
which are considered to be ‘virtues’ by God and His
Messenger, and to eradicate those things which have been
declared to be ‘vice’ by them.
• In other words, no state can be called Islamic if it does not
fulfil this fundamental objective of an Islamic State.
• Authorities:
i. Surah Al-Hajj 22:41: “(Muslims are) those who, if We give
them power in the land, establish the systems of Salat
(worship) and Zakat (poor-due) and enjoin virtue and
forbid evil.”
ii. Surah Ali Imran 3: 110: “You are the best of peoples,
evolved for mankind, enjoining what is right, forbidding
what is wrong and believing in God.”
• An Islamic state cannot evidently restrict the scope of its
activities. Its approach is universal and all-embracing. Its
sphere of activity is coextensive with the whole human life.
It seeks to mould every aspect of life and activity in
consonance with its moral norms and programme of social
reform.
• In such a state no one can regard any field of his affairs as
personal and private.
• Authority: Surah al-Baqarah 2:143 : “Thus have we made of
you an Ummah justly balanced, that you might be
witnesses over the nations, and the Apostle a witness over
yourselves.”
• It is clear from a careful consideration of the Qur’an
and the Sunnah that the state in Islam is based on an
ideology and its objective is to establish that
ideology. State is an instrument of reform and must
act likewise.
• It is a dictate of this very nature of the Islamic state
that such a state should be run only by those who
believe in the ideology on which it is based. That is
why in an Islamic polity the head of state must be a
Muslim.
• This word “Taqwa” may be defined to mean self-discipline,
self control, self restraint, self evaluation and self
education.
• In this regard Allah demanded from the Muslims who are
members of the Islamic polity/society to have Taqwa.
• Authority: Surah Ali Imran 3: 102: “O you who believe!
Keep from disobedience to God in reverent piety, with all
the reverence that is due to Him, and see that you do not
die save as Muslims.”
• Both justice and equality are important cornerstones of the
governance of an Islamic polity.
• Authority: Surah al-Maidah 5:8: “O you who believe! Stand
out firmly for justice, as witnesses to Allah, even as against
yourselves, or your parents, Or your kin, and whether it be
(against) rich or poor: For Allah can best protect both…”
• Based on this verse, justice and equality in the eyes of
Islam could only be achieved if a state implements Islam in
all its aspects and in its entirety.
• The Islamic polity secures the rights and freedom of individuals
and the citizens of the state.
• Example could be seen from the practice of Prophet Muhammad
when he protected the rights of the citizens of the newly formed
Islamic polity in Madinah under the Sahifah al-Madinah.
• Authority: Hadith: “Beware! Whoever is cruel and hard on a
contracted (non-Muslim subject), or curtails his rights, or burdens
him with more than he can endure, or takes anything of his
property against his free will, I shall myself be the claimant against
him on the Day of the Judgement”
• Point out that freedom in Islam does not conjure the meaning of
absolute right. Freedom in Islam is regulated so as not to injure
and come into conflict with other individuals’ interest or the
society at large.
• Authority: Surah Al-Baqarah 2:286: “(O believers, if you are worried
that God will take every soul to account even for what the soul
keeps within it of intentions and plans, know that) God burdens
no soul except within its capacity: in its favor is whatever (good) it
earns, and against it whatever (evil) it merits.”
1. Islam polity and other types of polity share similar general
objectives of a state for instance to realise public interest.
According to El-Awa, although the establishment of faith
as a purpose of government in Islam is of vital
importance, the realisation of the interests of the
governed in the Islamic state is not less important.
2. Islamic polity and other types of polity duty bound for
protection of life, property, honour, etc of its subjects.
Though, there may be some differences in the way the
notion of right or liberties are perceived under both
systems.
3. Islamic polity and other types of polity need to maintain
peace and security. Thus, both should have the ability to
defend its society, eliminate any internal or external threat
of all forms.
• Theocratic/Theocracy can be defined as a system of
government in which the laws of the State are believed to
be the laws of God
• An Islamic polity may be said as a state in which the
organisation, individuals, societies, and governments
enforce and apply the Shari’ah injunctions, specific and
general, in their daily life.
• A state is not Islamic simply because it is inhibited
predominantly or even entirely by Muslims, but rather, by
virtue of a conscious application of the socio-political
tenets of Islam to the life of the nation, and by
incorporation of those tenets in the basic constitution of
the country.
• However, Islamic polity is not theocratic because the term
“theocracy” implies two basic elements:
1. The acceptance of the principle that God alone is the
Sovereign of ultimate power.
2. The assumption that there’s a certain priestly class or
clergy who claim to be representatives of God on earth,
who alone have the right to interpret the will of God, and
who in some certain cases are the ones who are supposed
to enforce the divine law.
• Based on the first element, theocracy is not contradictory
with Islam. However, the second element has nothing to
do with Islam. In Islam there’s no church as an institution
as such, there’s no clergy. Islam doesn’t accept the notion
that a particular group of people can claim for themselves
to be representatives of God on earth. The entire human
race is regarded, in a sense, as representatives (vicegerent)
of God on earth.
• Under Islamic polity, power emanates not from the consent of the
governed, but from Allah. It is a trust of Allah in the hands of the
human being to enforce and uphold of the Divine Law. It is a trust
for which the trustee must answer to his Creator and to the entire
Islamic polity.
• There are certain fundamental principles in democracy which are
similar to Islam
1. The idea or notion of freedom of the people to choose the rulers
they want.
2. Participation of people in the decision-making process in some
form or the other.
3. The notion of the removal of government which fail to meet the
expectations of the people.
• The basic difference between the Islamic polity and democracy as
understood in the Western is when the ultimate authority lies with
the people. In Islam, the ultimate authority doesn’t belong to
people; it belongs to God alone. It means that both the ruler and
the ruled in Islam are subject to a higher criterion for decision-
making, that is, divine guidance.
• Khomeini believed that the Islamic polity is democratic in
nature. However, he stressed that the Islamic democracy,
unlike the corrupt Western and Eastern democracies, is the
rightful democracy, because it guarantees true liberty of
the community. Islamic liberty, unlike the Western idea of
liberty is defined by Islamic laws and consists of the
liberties that have been provided by God/Allah.
• According to Khomeini, the liberties that God has given us
are the logical liberties. Islamic equality, that is a
component of Islamic democracy, is also defined by Islamic
laws and primarily refers to the social rather than the
politico-economic equality of the believers.
• Muhammad Iqbal praised Islamic democracy for being
based on equality, and criticised Western democracy for
being a system where people are counted but not
weighed. The Islamic polity, which is founded upon Islamic
principles rather than alien ideas and which represents
contemporary needs of the Islamic community, frees
Muslims from subservience to alien values, provides them
with social justice, international respect and dignity; and
protect them against the evils of strive and war.
• According to Sayyid Qutb, the Islamic alternative is a
system that provides us with the bread, and frees us from
economic and social disparity, realising a balanced society
while sustaining us spiritually.
• For the West, the Islamic state is considered undemocratic
because Islam rejects the idea of popular sovereignty. By
recognising the sovereignty of God, makes it incumbent to
follow His lead by complying with the Shari‛ah instructions.
Submission to God’s sovereignty undoubtedly imposes
restrictions upon individual and communal rights that are
the fundamental attributes of popular sovereignty and an
integral component of the Western concept of democracy.
• However, it is arguable that such restrictions on rights do
not necessarily make the Islamic polity authoritarian
because under the supervision of and in compliance with
the Shari‛ah the community still maintains broad discretion
in decision-making.
• Mohammad Asad observed that being a Divine Ordinance,
Shari‛ah, duly anticipates the fact of historical evolution,
and confronts the believer with no more than a very
limited number of broad political principles; beyond that, it
leaves a vast field of constitution making activity, of
governmental methods, and of day-to-day legislation to
the ijtihad (independent judgement) of the time
concerned.
• According to the Westerner, constitutional monarch is
practiced when power is vested in a person or family of
pre-eminent nature. The constitutional monarch rules
according to the constitution of the country and on behalf
of all the society not in favour of any group or member.
• Islam does not accept a system which involves any kind of
dictatorship, nor does it accept a system of monarchy
where the power is inherited within the same family. Under
Islamic polity, the phrase may be understood to represent
the concept of “Caliphate”. As a term, it has frequently
been used to describe an Islamic political system based on
monarchy, while the authentic notion truly refers to the
authority of every single Muslim in his human capacity and
his right to enjoy dignity and respect.
• The notion of khilafah expresses how Islam empowers
human beings and also how the government does not
enjoy any special rights apart from those delegated to it by
the political community.
• In Islam, power is vested in God and not person or family
as understood under the Western concept of constitutional
monarch. Hence, under Islamic polity the government and
the governed are one; the former are actually a part, a
necessary, indispensable part of the latter. The agency for
running the affairs of the state will be formed by
agreement with these individuals, and the authority of the
state will only be an extension of the powers of the
individuals delegated to it. Their opinion should be
decisive in the formation of the government, which will be
run with their advice and in accordance with their wishes.
• Whoever gains their confidence will undertake the duties
and obligations of the caliphate on their behalf (in the
form of political representation); and when he/she loses
this confidence he/she will have to step down from his/her
specific position and be accountable for his/her actions
and decisions. In this respect Islamic polity evident a form
of democracy.
• Nation state is a specific form of state, which exists to
provide a sovereign territory for a particular nation, and
which derives its legitimacy from that function.
• Most countries follow this idea of nation-state. However,
this concept is alien to Islam. For example, if the
impersonal legitimate sovereignty of government arises
from popular consent, which is not accepted by Islam.
• It is important to note that nationalism is in essence an
exaltation or extreme loyalty to a State or Nation, with
assimilation at the cost of religious values or morality
issues.
• According to Ismail al-Faruqi, Islamic polity is built on the
concept of “ummatism” or “ummah”, which means a
collection of individual where each practicing their own
beliefs or customs and each expounding their religious
liberties to the fullest, making bai’ah (oath of fealty) to a
ruler who conducts the affairs of the State by the law of
God.
• The Islamic concept of Nation differs radically from that of the
Western nationalist theory of State. The latter takes its root in the
dualism of Western neo-Christian Thought. The former, based on
the principle of Tauhid, that recognises allegiance not to the
throne of State ‘per se’, but to Allah; and as allegiance Allah
means abidance of His Divine Law as revealed through His
Prophets, so allegiance to Allah is allegiance to the Law.
• Besides that, the goal of nationalism or nation-state is to create
national units, whereas the goal of Islam is universal unity. To
nationalism or nation-state what matters the most is loyalty and
attachment to the homeland, whereas to Islam, it is God and
religion
• Authority: Surah Al-Hujurat 49:13: “O humankind! Surely We have
created you from a single (pair of) male and female, and made
you into tribes and families so that you may know one another
(and so build mutuality and co-operative relationships, not so that
you may take pride in your differences of race or social rank, or
breed enmities). Surely the noblest, most honorable of you in
God's sight is the one best in piety, righteousness, and reverence
for God. Surely God is All-Knowing, All-Aware.”
• In short, Islam, as a polity, is the working expression of the
principle of Tauhid (Unity). It finds its source in Unity; its strength
in the perception of the spiritual aspect of Unity as the
fundamental life-directive.
• The Qur’an and Prophetic tradition are the ultimate constitution,
which is different from the other types of polity based on say
secular constitution because it cannot be changed. In the secular
system the constitution can be changed whenever needed
because it’s human-made and there may be better words than the
ones that were put in the first place.
• In addition, it’s quite clear that democracy seems to go with
systems which are basically secular, where the legislation of
churches or temples or any religious body has nothing to do with
the actual political system. However, the system of government in
Islam doesn’t make any distinction between the moral and
temporal and the whole notion of secularism is alien to Muslim
thinking.